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Alexander v. State (12/28/2001) ap-1778
Alexander v. State (12/28/2001) ap-1778
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts.
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DONALD L. ALEXANDER, ) Court of Appeals No. A-7839
) Trial Court Nos. 1KE-S99-381 CI;
Appellant, ) 1KE-S92-1229 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1778 - December 28, 2001]
)
Appeal from the Superior Court, First Judicial
District, Ketchikan, Trevor N. Stephens, Judge.
Appearances: G. Blair McCune, Deputy Public
Defender, and Barbara K. Brink, Public Defender, Anchorage, for
Appellant. Michael J. Stark, Assistant Attorney General, and Bruce
M. Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
COATS, Chief Judge.
Donald L. Alexander was convicted of sexual assault in the
first degree [Fn. 1] and sexual abuse of a minor in the second
degree. [Fn. 2] Superior Court Judge Thomas M. Jahnke ordered the
two convictions to merge, and imposed a fifteen-year sentence with
five years suspended. As part of his sentence, Judge Jahnke ordered
"defendant [to] take advantage of sex offender . . . programs that
are available in the facility unless an evaluator in the facility
indicates that it's not necessary."
Within a few months of his projected release date,
Alexander was transferred from Arizona to Lemon Creek Correctional
Center near Juneau and enrolled in the pre-treatment sex offender
program. This program was for prisoners who were within six months
of release as preparation for treatment outside the prison as part
of their probation or parole.
Alexander was removed from the program on the ground that
he was not in compliance with the program's requirements. As a
result of his discharge from the program, the parole board revoked
Alexander's parole because of his failure to comply with Judge
Jahnke's order requiring him to take advantage of sex offender
treatment programs in the facility.
Alexander then filed an application for post-conviction
relief challenging the parole board's decision. Superior Court
Judge Trevor N. Stephens granted the state's motion for summary
disposition. Alexander appeals from this decision. We affirm.
Alexander first contends that Judge Jahnke's order
requiring him to "take advantage of sex offender . . . programs that
are available in the facility" was insufficient to support his parole
revocation. Alaska Statute 12.55.015(a)(10) authorizes a court to
"order the defendant, while incarcerated, to participate or comply
with the treatment plan of a rehabilitative program that is related
to the defendant's offense or to the defendant's rehabilitation if
the program is made available to the defendant by the Department of
Corrections." Alexander essentially contends that "take advantage
of" has a materially different meaning than "participate in or comply
with."
In granting the state's motion for summary disposition,
Judge Stephens ruled that "take advantage of" meant that Alexander
had to "enroll in and fully participate" in the treatment program.
Despite the parole board's reference to Alexander's failure to
complete the treatment program, Judge Stephens found that the parole
board's decision was that Alexander had failed to meaningfully
participate in the program. We agree. In his judgment, Judge
Jahnke ordered, rather than recommended, Alexander to take advantage
of all sex offender programs. It seems clear that Judge Jahnke was
issuing an order that derived its authority from AS 12.55.015(a)(10)
and that he was requiring Alexander "to participate in . . . the
treatment plan." We believe that Judge Jahnke's order gave Alexander
sufficient notice that he was to make meaningful efforts to
participate in the treatment program.
Alexander next contends the parole board's decision to
revoke his parole for non-compliance with the treatment program was
based on insufficient evidence. The parole board's factual
determinations are reviewed "to determine whether the decision was
supported by substantial evidence," while its discretionary authority
"is reviewed under the 'reasonable basis' standard to insure that
[the board's] determinations are supported by evidence in the record
as a whole and there is no[t] abuse of discretion." [Fn. 3] Judge
Stephens found that "though Mr. Alexander did not refuse to
participate in all aspects of 'the' program, it is clear that he
chose not to fully participate . . . [and it was] reasonably
determined that his removal was appropriate." This finding is
supported by the record. We affirm Judge Stephens's order granting
the state's motion for summary disposition.
AFFIRMED.
FOOTNOTES
Footnote 1:
AS 11.41.410.
Footnote 2:
AS 11.41.436.
Footnote 3:
Covington v. State, 938 P.2d 1085, 1090-91 (Alaska App. 1997)
(citations omitted).
In the Court of Appeals of the State of Alaska
Donald Alexander, )
) Court of Appeals No. A-07839
Appellant, )
v. ) Order
)
State of Alaska, )
)
Appellee. ) Date of Order: 12/28/01
Trial Court Case # 1KE-99-00381CI
Before: Coats, Chief Judge, Mannheimer and Stewart, Judges.
On consideration of the State's motion to publish the
memorandum opinion and judgment,
It is Ordered:
1. The motion to publish is Granted.
2. Memorandum Opinion and Judgment No. 4497, issued on
November 21, 2001, is Withdrawn and Opinion No. 1778 is issued in its
place.
Entered by direction of the Court.
Clerk of the Appellate Courts
Lori A. Wade, Chief Deputy Clerk
cc: Court of Appeals Judges
Central Staff
Judge Trevor Stephens
Trial Court Appeals Clerk
Publishers
Distribution:
G Blair McCune
Attorney at Law
4714 Mills Drive
Anchorage AK 99508
Michael J Stark
Asst Attorney General
P O Box 110300
Juneau AK 99811
